Opinion
44905
February 5, 1986
In the Court of Appeals of Virginia on Wednesday, the 5th day of February, 1986.
Before Judges Coleman, Moon and Cole
ORDER
VIRGINIA:
On October 9, 1984, Paul B. Collison, proceeding pro se, petitioned the Circuit Court of Grayson County for a writ of habeas corpus following his convictions in March of 1983 for breaking and entering, grand larceny, and uttering forged checks. The grounds asserted by petitioner were as follows:
(1) He was denied effective assistance of counsel in that:
(a) defense counsel and the Commonwealth's Attorney knew everyone on the jury panel and picked the ones they wanted;
(b) defense counsel would not allow petitioner to testify;
(c) defense counsel did not defend petitioner properly as he was a close friend of the prosecutor;
(2) Insufficiency of the evidence to establish statutory burglary;
(3) Petitioner was intoxicated at the time he gave a statement;
On appeal petitioner asserted five additional grounds for relief which were addressed in brief and by correspondence from petitioner to the Attorney General on November 15 and 20, 1984:
(4) The Commonwealth's Attorney offered to help two of the jurors concerning sentencing;
(5) The deputy sheriff who pressed charges against petitioner was with the jury the whole time they were in the room;
(6) Two checks were improperly used as evidence of statutory and grand larceny because, at the time of trial, petitioner had not been convicted of any offense involving the checks;
(7) One witness was convicted of a felony, breaking and entering, in 1983; and
(8) The petitioner was never advised of his right to appeal.
These additional grounds for relief were never raised in the trial court.
On January 22, 1985, Judge Duane E. Mink summarily denied the petition. Petitioner appealed from that order, and asserts that he should have received a plenary hearing on the grounds set forth in his petition and by amendment.
Petitioner's claims (4) through (8) which were not raised in the court below, cannot be considered on appeal.
The trial court's summary dismissal without a plenary hearing of the following grounds for relief was proper and is affirmed based upon the authority and reasons hereafter stated: ground (1)(a), there being no allegation that the jury was not fair and impartial; ground (1)(c), there being no factual allegations sufficient for habeas corpus relief, see Penn v. Smyth, 188 Va. 367, 370, 49 S.E.2d 600, 601 (1948); ground (2), as the sufficiency of the evidence to support a conviction cannot be challenged in a state habeas corpus proceeding, Pettus v. Peyton, 207 Va. 906, 911, 153 S.E.2d 278, 281 (1967); and ground (3), there being no objection made on this ground at trial or on appeal. Slayton v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108 (1975).
Concerning petitioner's allegation that his trial attorney did not allow him to testify, the right of an accused to testify on his own behalf is fundamental to the concept of due process. Virginia codifies this right in Code Sec. 19.2-268. In his sworn pleading petitioner states: "I want[ed] to tell my side of the story," but "[m]y lawyer didn't let me testify in my behalf." Petitioner's trial attorney, Mr. Graham M. Parks, by unsigned affidavit, answered that he advised petitioner before trial of his right to testify, and, although Mr. Parks advised petitioner not to testify, the decision of whether to testify or not was left to petitioner.
A prima facie showing by affidavit or other evidence of facts which, if true, show that a petitioner is illegally detained entitles a petitioner to a hearing on his petition. Davis v. Smyth, 155 F.2d 3, 6 (4th. Cir. 1946). Code Sec. 8.01-654(B)(4) provides, however, that where a writ petitioner's allegations "can be fully determined on the basis of recorded matters, the court may make its determination whether such writ should issue on the basis of the record."
Although Mr. Parks' affidavit is a part of the "complete record" as contemplated by Code Sec. 8.01-654 (B)(4), nevertheless, petitioner's allegation cannot be fully determined on the basis of the recorded matters alone. Mr. Parks' affidavit, even if it had been signed, does not resolve the issue; the affidavit demonstrates that a factual dispute exists as to whether petitioner was denied his right to testify. When a factual dispute remains, evidence from witnesses examined ore tenus or by depositions is required to resolve the issue. See Walker v. Johnson, 312 U.S. 275 (1941); Walker v. Mitchell, 224 Va. 568, 571, 299 S.E.2d 698, 699 (1983). A plenary hearing is necessary to determine the factual issue of whether petitioner was denied his right to testify.
Accordingly, it is ordered that the petition for writ of habeas corpus be remanded to the Circuit Court for a hearing on the question whether petitioner was denied his right to testify on his own behalf. Upon remand petitioner may consider whether he desires to seek leave of court to amend his petition pursuant to Rule 1:8 to include grounds (4) through (8) which he attempted to raise for the first time on appeal.
It is ordered that the trial court allow counsel for the appellant a fee of $200 for services rendered the appellant on this appeal, in addition to counsel's costs and necessary direct out-of-pocket expenses.
The Commonwealth shall recover the amount paid court-appointed counsel to represent him in this proceeding, counsel's costs and necessary direct out-of-pocket expenses, and the fee and costs to be assessed by the clerk of this Court and the clerk of the trial court.
This order shall be certified to the trial court.
A copy, Teste: David B. Beach, Clerk
By: Patricia G. Davis, Deputy Clerk